Loophole candidates

Steve May (right), a Republican candidate for the House in District 17, helped Anthony "Grandpa" Goshorn qualify as a Green Party candidate for the state Senate. May and Goshorn appeared together in front of the Sandra Day O'Connor Federal Courthouse on Sept. 9, just minutes before a hearing to determine whether Goshorn and several other Green Party candidates will remain on the ballot. (Photo by Evan Wyloge/Arizona Capitol Times)

If 2008 was an experiment, then 2010 is the grand conspiracy.

Eleven write-in candidates won the Green Party nomination in August, including a handful of “street people” who exploited a little-known loophole that allowed them to win the primary with only one vote. Now, some of those candidates, whom Democrats allege were recruited by Republicans, threaten to take votes from Democrats in key races.

It worked two years ago, when a Green Party candidate with Republican ties took enough votes from the Democrat in the race to pave the way for a GOP victory in Legislative District 10.

That “2008 Experiment” as Democrats like to call it, and the “2010 Conspiracy” as they dub it now, has Dems fearful enough to believe that the tactic will develop into a full-blown epidemic of Republicans using Green Party candidates as a campaign weapon against them in future years.

And they’re angry enough that they filed an election complaint, helped fund a federal lawsuit by the Green Party and are developing strategies to present legislation to stop the campaign tactic.

Even if the tactic is legal, Democrats say it’s dirty politics and it should be stopped. The problem is there’s no easy way to stop it.

Even Democratic lawmakers and legal scholars say that any law preventing the campaign tactic would be difficult to write and could run the risk of broader, unintended changes to election laws.

On Sept. 9, U.S. District Court Judge David Campbell heard the case in which the Arizona Green Party alleged the “sham” candidates violate the party’s First Amendment right to associate — or not associate — with candidates based on whether they share its values and principles. The judge had not ruled by press time.

If no laws are changed to prevent the so-called Trojan horse candidates from getting on the ballot, Democrats may have no other option than to respond in kind, said Rick Herrera, a political science professor at Arizona State University. Politics is all about finding an advantage, he said, and both parties would be foolish to ignore any option that’s within the law, especially if it’s successful for the second straight election.

Herrera said he expects Democrats and Republicans both to recruit straw candidates in future elections.

“Anything you can do to get the extra vote, they would be kind of silly not to do,” Herrera said. “Believe me, they think about doing a lot worse.”

The tactic isn’t new. Recently, the GOP accused Democrats of assisting or recruiting conservative tea party candidates for Republican primaries in Florida, Michigan, New Jersey and Pennsylvania. And former Republican Rep. Steve May, who is accused of recruiting Mill Avenue street people to run as Greens, alleged that Democrats have recruited Libertarians or other Republicans to run against him.

Arizona isn’t the only state where the GOP stands accused of election trickery with Green Party candidates. Texas Democrats sued the state Republican Party in June after accusing the GOP of shelling out more than a half-million dollars to put a about a dozen Green candidates on the ballot, including in the governor’s race.

REPUBLICANS DENY ALLEGATIONS

Republicans in Arizona denied the accusations that they recruited Green candidates to draw votes away from Democrats.

May, a candidate in House District 17, said he originally brought in just one Green candidate.

But after District 17 Senate candidate Anthony “Grandpa” Goshorn dropped out due to a Democratic challenge of his petition signatures, May said he found the loophole that allows write-ins to win the Green Party nomination with just a single vote.

“You had a bunch of angry street people on Mill Avenue who kind of wanted to take revenge and get engaged,” May said.

May said he recruited his slate of Green candidates, and paid for their legal defense in the Green Party’s lawsuit, but did so to help friends he’s made while hanging out with them on Mill Avenue.

“If that happens, it’s a bonus, but that’s not the purpose,” May said of the possibility that his candidates will take votes from Democrats.

Rep. Jim Weiers said he knows Green candidate Chris Campbell, a write-in for the competitive District 10 Senate race, and spoke with him about his race, but didn’t recruit him. The former House speaker denied similar allegations in 2008 regarding Margarite Dale, who won enough votes to help knock off Democrat Jackie Thrasher in the general election.

LAWS UNLIKELY TO HELP MUCH

Democratic lawmakers are pondering legislation that would ease the problem, but those proposed laws would be only a hurdle, not the wall they’d like to see.

One proposal seeks to change the law that allows Green write-in candidates to win their primaries with just one vote if they’re running unopposed.

“I think something needs to be addressed because this is an absolute deception to the voters,” said Democratic Rep. Chad Campbell. “Putting up these straw candidates is not what democracy is about.”

Democratic Rep. Kyrsten Sinema said the Legislature can pass laws that would make it harder for sham candidates to get on the ballot, especially the write-ins who sparked the Green Party lawsuit. But there’s only so much lawmakers can do.

Democratic, Libertarian and Republican write-in candidates have significantly higher thresholds to get on the ballot. The number of write-in votes they get must be equal to the number of signatures needed to get on the ballot in the first place.

But because the Green Party is newly recognized — the party lost its ballot status after the 2008 election, and regained it earlier this year — write-ins only need a plurality of votes to win their party’s nomination. Using that loophole, several of the candidates named in the Green Party’s lawsuit got just one vote in the primary, and others will go on to the general election after getting barely more than that.

To regain its ballot access, the Arizona Green Party submitted more than 24,000 signatures to the Secretary of State’s Office in April.

“If you can get that many signatures to qualify as a party, you should be able to gather a couple hundred (votes) to qualify for the ballot,” Sinema said.

CANDIDATES SWITCHED REGISTRATION

Another proposal would require any candidate to be registered under their party for a certain length of time in order to run for office. Most of the disputed Green candidates switched their voter registration to the party within two days of each other in July, shortly before the deadline for running for office. Such a requirement would have kept them off the ballot.

“You can’t eliminate people from running for office, obviously, as a member of any party. That goes without saying. I think you can put some safeguards in place and hopefully try to address the situation in the best way possible, which may be the time-requirement,” Campbell said.

But attorney Thomas Ryan argued that such a law would be problematic because politicians switch parties frequently. Sen. Arlen Spector defected to the Democrats from the GOP in 2009, and ran for re-election as a Democrat this year, while Sen. Joe Lieberman left the Democrats and now serves as an independent. In Arizona, state Superintendent Tom Horne became a Republican after decades as a registered Democrat shortly before he ran for the Legislature in 1996.

Claudia Ellquist, co-chair of the Arizona Green Party, said the party has spent three years discussing proposed legislation that would prevent sham candidates from qualifying for the ballot. But getting legislation through is difficult, and their strategy for the upcoming session will largely hinge on how the party’s lawsuit plays out in federal court.

“Our existence as a political party does require us to look to instances where rules that were designed to be a good fit for Democrats, Republicans and Libertarians might not be a good fit for us,” Ellquist said.

The proposed laws regarding time-requirements and higher write-in vote thresholds would have kept candidates like Goshorn and state treasurer hopeful Thomas Meadows from carrying the Green Party’s banner into the general election.

But they wouldn’t stop another Dale-like situation — who was not a write-in and qualified for the ballot — from shaving votes from Democrats because the law does not consider a candidate’s reason for running for office, legal experts said. That means “sham” candidates need only abide by relevant election laws, even if their motives are impure.

Any law that prohibited alleged “sham” candidates based on their intent would likely be so prohibitive that it would infringe on legitimate candidates’ right to run for office, said attorney Janna Day. Day, an elections attorney at Fennemore Craig, said any cure would likely be worse than the problem.

“It’s sticky if you try to look at how you would foreclose it without clamping down too much and prohibiting people from legitimately being able to run,” Day said. “You could never go down that road.”

The Arizona Libertarian Party successfully sued in 2007 to keep its primary closed. Independents are unlikely to dominate the Democrats’ or Republicans’ open primaries, but there are far more registered independents than Libertarians in Arizona, and a relatively small percentage of them could take Libertarians’ primaries out of their hands.

“In essence, we’re making a similar argument here — that the purpose of a political party is to have a group of people who determine who the candidate will be on the ballot,” Ellquist said.

Attorney Roopali Desai, who is representing the Green Party, also argued that the alleged recruitment of sham candidates violates a section of the Arizona Constitution, which requires “laws to secure the purity of elections.” But that provision —  Article 7, Section 12 —  is too vaguely worded to be used against the recruited write-in candidates on its own, Ryan said.

Ryan said recruiting Trojan horse candidates is unethical, but still legal. Furthermore, he said, there’s likely no way to make it illegal. Rooting out such candidates is the responsibility of the media and rival candidates, he said, not the legal system.

“If somebody’s running for the office, even if their motives are questionable, then that’s just a basis for us to evaluate that candidate,” Ryan said.